ACLU Letter to Attorney General Gonzales Requesting the Appointment of Outside Special Counsel for the Investigation and Prosecution of Violations, or Conspiracy to Violate, Criminal Laws Against Warrantless Wiretapping of American Persons

Make a Difference

Re: Request for the Appointment of Outside Special Counsel for the
Investigation and Prosecution of Violations, or Conspiracy to Violate, Criminal
Laws Against Warrantless Wiretapping of American Persons

Dear Attorney General Gonzales:

The American Civil Liberties Union calls on the United States Department of
Justice to appoint an outside special counsel with the independence to
investigate and prosecute any and all criminal acts committed by any member of
the Executive Branch in the warrantless electronic surveillance of people in the
United States over the past four years by the National Security Agency (NSA).
Due to the severe constitutional crisis created by these actions, it is
essential that such a counsel be appointed immediately. Such crimes are serious
felonies and they need to be fully and independently investigated.

An independent investigation by a prosecutor, not subject to dismissal by any
political appointee or elected official, is the only way to ensure that all
those who authorized this warrantless electronic surveillance, or engaged in
this electronic interception or monitoring, are held accountable for committing
these serious crimes. No person is above the law, not even the President of the
United States of America.

For the past 27 years, U.S. law has made it a crime to "intentionally"
"engage in electronic surveillance under color of law except as authorized by
statute." 50 U.S.C. § 1809(a)(1). There is but a single defense to such a
charge: that "the electronic surveillance was authorized by and conducted
pursuant to a search warrant or court order of a court of competent
jurisdiction." 50 U.S.C. § 1809(b). Conviction for violating this federal law is
punishable "by a fine of not more than $10,000 or imprisonment for not more than
five years, or both." 50 U.S.C. § 1809(c). It is clear from the president’s own
statements that the electronic surveillance of hundreds or even thousands of
people in this country has been conducted intentionally (and continues) without
any warrant, in plain violation of this criminal prohibition in the Foreign
Intelligence Surveillance Act (FISA).

The Appointment of an Outside Special Counsel Is Plainly
Warranted.

As you know, the Justice Department’s own regulations require the appointment
of an outside special counsel when a three-prong test is met. 28 C.F.R. part
600.1. First, a "criminal investigation of a person or matter [must be]
warranted." Second, the "investigation or prosecution of that person or matter
by a United States Attorney’s Office or litigating Division of the Department of
Justice would present a conflict of interest for the Department." And, third,
"under the circumstances it would be in the public interest to appoint an
outside Special Counsel to assume responsibility for the matter." If this
three-prong test is met, under the federal regulations that govern the Justice
Department, a special counsel must be selected from outside the government who
has the authority to secure necessary resources for investigation and
prosecution and who would have full investigatory and prosecutorial powers. 28
C.F.R. parts 600.3-600.6.

In the matter of whether members of the Executive Branch violated, or
conspired to violate, the federal laws against warrantless wiretapping in
national security investigations, the three-prong test for appointing an outside
special counsel is easily met. Both the letter and spirit of FISA have been
violated. The shocking revelations of the past few days make it clear that the
administration cannot be entrusted with investigating itself, especially when
the instructions to violate our federal criminals laws came from the president
himself. President George W. Bush and members of his cabinet, including you, as
well as the Principle Deputy Director for National Intelligence, have gone on
the public offensive after reports broke that the NSA has engaged in a secret
domestic program to listen in on conversations of American citizens and other
people in this country without any court review or authority under FISA. These
reports first appeared in the New York Times on December 16, 2005. The
public interest demands that this prima facie case of criminal activity
be referred to a special counsel who has the independence to investigate the
violation of these criminal laws. The three prongs of the test for such
appointment are discussed below.

I. The Appointment of a Special Prosecutor Is Warranted because Both the
Letter and Spirit of FISA Have Been Violated by these Warrantless Wiretaps and
No Legal Defense Precludes an Independent Investigation of Those
Responsible.

A criminal investigation is warranted despite the weak rationalization put
forward by the administration. The predicates for the criminal offenses at issue
here have been met by any reading of the plain language of the applicable laws.
President Bush has already admitted that he has been involved in the electronic
surveillance of people in this country without court approval of those wiretaps.
That this surveillance was intended to protect against international terrorism
does not exempt it from FISA. This statute expressly governs all electronic
surveillance by intelligence gathering agencies on these shores, whether to
prevent "international terrorism" or sabotage or to monitor foreign spies. 50
U.S.C. §§ 1801 (c-d). Whether this surveillance takes the form of "detection" or
"monitoring," the two words the president tried to distinguish in his press
conference on December 19, 2005 or whether it involves "signals intelligence,"
as you mentioned in your press conference of the same day, makes no difference.
FISA defines "electronic surveillance" to include any "acquisition by an
electronic, mechanical, or other surveillance device of the contents of any wire
or radio communications." 50 U.S.C. § 1801(f). Similarly, the suggestion that
there is some exemption from the statutory requirements for international
conversations involving American persons is baseless. FISA covers any electronic
communication "sent by or intended to be received by" a person in the United
States, as well as purely domestic communications. Compare 50 U.S.C. §§
1801(f)(1 and 2) with § 1801(f)(3).

Similarly, the claim that an emergency or other urgency necessitated the
failure to follow the federal law governing electronic surveillance on U.S. soil
is refuted by the statute itself. FISA expressly provides an "Emergency
Authorization" process so that if "the Attorney General reasonably determines"
that an emergency requires electronic surveillance to begin before an
application can be made to the FISA court, surveillance is allowed so long as a
court order is sought within 72 hours. 50 U.S.C. § 1805(f).

Likewise, there is no limitless statutory exception for warrantless
wiretapping during wartime. FISA expressly governs wiretapping procedures
"during time of war" and provides that "the President, through the Attorney
General, may authorize electronic surveillance without a court order under this
title to acquire foreign intelligence information for a period not to exceed
fifteen days following a declaration of war by the Congress." 50 U.S.C. §
1811 (emphasis added). Thus, even to the extent the administration is claiming
there was a declaration of war somehow allowing warrantless wiretapping based on
the resolution on the Authorization for Use of Military Force in Afghanistan,
115 Stat. 224 (2001), federal law expressly permits such warrantless
surveillance to continue only for 15 days after a declaration of war is
passed by Congress.

In fact, Congress declined to declare war and trigger an array of executive
authorities attendant to such a declaration under Article I § 8 of the
Constitution. And, even if the resolution were misconstrued as a declaration of
war, however, it did not provide any authority to violate federal law on
wiretapping. The interplay between the express provisions in FISA governing
wiretapping in the U.S. and the use of force declaration naturally leads to the
conclusion that, at most, 15 days of wiretapping without a court order was and
is still the law, even in time of war. Our federal courts are functioning and
the FISA court has been fully operational for the past four years. The use of
force resolution provided no extension of the 15-day exception to oversight by
the secret court that was created to review all national security wiretaps in
the U.S. relating to international terrorism or sabotage. See 50 U.S.C.
§§ 1801 (c and d). Moreover, the limited exception to judicial approval for the
15 days immediately following the declaration of war does not provide for any
extensions to this one-time exception. Compare 50 U.S.C. § 1811 with,
e.g., 50 U.S.C. § 50 U.S.C § 105(e)(2) (providing extensions for court
ordered wiretaps, available only upon approval by the FISA court). Any extension
of Section 1811 of FISA would render the 15-day exception meaningless. Nor was
any exception to the criminal liability in Section 1809 of FISA made part of the
use of force resolution. It is black letter law that the president may not
interpret our criminal laws to avoid his own criminal liability.

And, although any justifications proffered by the administration go to any
defense rather than to whether the predicates for investigation and indictment
exist, it is clear that the United States Supreme Court has not endorsed any
"plenary authority" of the president under Article II of the Constitution to
wiretap in violation of the Fourth Amendment of the Constitution or federal laws
enforcing the rights protected therein. SeeHamdi v. Rumsfeld, 524
U.S. 507, 517-18 (2004). The court’s decision in the Hamdi case was very
carefully limited to the detention of enemies captured on the battlefield. The
warrantless wiretapping of people in the United States is simply not equivalent
to such battlefield detentions. Despite the urging of the Justice Department to
have the court declare that the president has unlimited or unimpaired
commander-in-chief authority to take any action he deems necessary, the court
declined to reach such a result. To apply the holding in Hamdi to
authorize the actions at issue in the warrantless wiretapping that has been
admitted by the administration, one would have to accept the assertion that the
battlefield is everywhere and so the use of force resolution gave President Bush
the power to re-write any law, criminal or civil, without any limitation. That
is clearly not what Congress intended; nor is it what the Supreme Court
endorsed.

In Hamdi, the court narrowly focused its decision on the conclusion
that the capture and detention of lawful combatants on the battlefield is
universally considered an important incident of war. Id. at 518. Even
with the court’s approval of the authority to detain combatants, whether citizen
or foreign, the court emphasized the critical importance of judicial review of
the actions of the president that affect the rights of Americans. Id. at
536-37 (noting that "even the war power does not remove constitutional
limitations safeguarding essential liberties"). The Hamdi decision
expressly rejected the administration’s argument that respect for the
commander-in-chief’s powers necessitates a heavily circumscribed role for the
courts during wartime, and the court considered such an approach to be an
unacceptable effort to "condense power into a single branch of government,"
contrary to the checks and balances on power required by the Constitution.
Id. at 535-36. As the court declared, it is "clear that a state of war is
not a blank check for the President when it comes to the rights of the Nation’s
citizens."

Yet, in the matter at hand, without the mandate of FISA there is no way to
safeguard Fourth Amendment rights or have any independent judicial check on
those civil liberties when there is no judicial review of the wiretapping of
people in America. The electronic surveillance at issue is conducted in secret
and the individuals whose rights may be violated may never know that their
conversations were captured by intelligence agents. Without the judicial
oversight that is legally required by FISA there is no way to know whether any
of the hundreds or thousands of individuals in this country whose international
communications are being surveilled by the NSA are enemies or agents of a
foreign power. Without the judicial oversight required by law, there is no
independent check on whether all the citizens or residents of this country
subjected to these wiretaps are involved in criminal wrongdoing or connected to
the activities of al Qaeda.

The entire point of FISA’s requirement of judicial review is to ensure that
only suspected foreign agents are subject to government seizure of their every
electronic communication. The process due under the Constitution to vindicate
the fundamental Fourth Amendment right to privacy surrounding private
conversations-whether by telephone, e-mail, or facsimile, whether international
or domestic, and whether with loved ones or coworkers-is that the government
must show a court that there is reason to believe the person in this country is
an agent of a foreign power, before round-the-clock surveillance or recording of
the intimate or mundane conversations of free people is permitted. And, nothing
Congress has voted for since September 11, 2001 constitutes permission for the
president to strip away these rights, secretly and unilaterally.

Indeed, the facts immediately following the passage of the Afghanistan
resolution show that there was no congressional intent that the use of force
resolution be construed to set aside the legal requirements of FISA. Within 40
days of the vote on the use of force resolution in the fall of 2001, Congress
passed extensive changes to FISA at the request of President Bush, but none of
these amendments struck the requirement that the president get judicial approval
to conduct electronic surveillance of people in the U.S. The USA PATRIOT Act,
which was drafted primarily by the Bush Administration and passed by Congress,
contains 25 separate enhancements of electronic surveillance procedures, making
numerous revisions to FISA. Public Law No. 107-56, 115 Stat. 272 (2001) (Title
II). But not one of these amendments altered the fundamental requirement that
there be judicial review of all foreign intelligence wiretaps in the U.S. Not
one of them extended the 15-day exception immediately following declarations of
war. Not one of them created a loophole to the short-term emergency exception to
begin FISA wiretaps and then seek court approval. Not one of them altered the
criminalization of any intelligence wiretaps conducted without a court order.
Not one of them modified the mandate of federal law that the procedures for
Title III criminal wiretaps and Title 50 FISA wiretaps "shall be the
exclusive means by which electronic surveillance . . . and the
interception of domestic wire, oral, and electronic communications may be
conducted" in the U.S. 18 U.S.C. § 2511(2)(f) (emphasis added). This makes the
FISA laws distinct from the statute at issue in the Hamdi case.

Given both the lack of express amendment or revision to FISA in the use of
force resolution and the fact that Congress worked with the White House to
extensively revise and reinforce FISA as the exclusive means by which electronic
surveillance in intelligence investigations in the U.S. was to be conducted to
fight terrorism, there can be no credible argument that the resolution allows
the president to disregard the legal obligations of FISA. FISA was written
specifically to require independent federal court review of all electronic
surveillance requests in investigations of international terrorism or
international terrorist plots in the U.S. 50 U.S.C. § 1801 et seq. The
USA PATRIOT Act, which was even titled "Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,"
modified the FISA powers extensively but made no changes that would authorize
the illegal actions taken by the president or excuse or permit the warrantless
wiretapping of Americans in this country.

Thus, the Afghanistan resolution did not repeal the specific statutory
requirement of FISA that the president or his agents must get a court order to
wiretap the communications of people in the United States in national security
investigations governed by Title 50 of the United States Code. Whatever the
expansive interpretation argued by administration lawyers, such claims cannot
pretermit the appointment of a special prosecutor to investigate these clear
violations of federal law. Such matters may be argued in defense during any
criminal trials that result from any indictments brought by a federal grand
jury.

II. It Is Beyond Dispute that a Criminal Investigation by the Justice
Department into Conduct Approved by the President and Leaders of the Justice
Department Presents a Clear Conflict of Interest for the Justice Department.

Given your own defense of the president’s actions, your imputed involvement
in the continuation of these warrantless wiretaps over the past 11 months as
attorney general, as well as your former responsibilities as White House counsel
at the time this program of warrantless electronic surveillance was begun, it is
clear that the Justice Department under your leadership would have an
unavoidable conflict of interest in fully investigating and prosecuting the
violations of 50 U.S.C § 1809. Regrettably, your own statements indicate that
you, yourself, are implicated in violating these federal laws, regardless of any
defense you may assert.

You have also publicly stated that you discussed trying to change the FISA
laws that require court approval of electronic surveillance in intelligence
cases but you were told by political allies in Congress that a change in the law
to permit the actions the administration was taking "was not something we
could likely get, certainly not without jeopardizing the existence of the
program, and therefore, killing the program." Attorney General Press Conference,
December 19, 2005 (emphasis added). As the nation’s top law enforcement officer,
rather than stop a program operating in violation of the law or seek to amend
the law to permit what is otherwise illegal activity, it appears you and others
chose to cover it up. And, although it has been repeatedly suggested that
Congress was kept apprised and somehow ratified this criminal behavior, it
appears that those few members who were informed of the general outlines of the
program were ordered to keep silent. And some of those few who the
administration is suggesting somehow ratified the repeal of the requirements of
FISA have now noted that they were not informed of the true nature of this
secret program and that even the inadequate information they were provided
caused them to object. The president cannot amend the law with a briefing.

Under such circumstances, it is obviously impossible for you to have any
genuine independence in this matter. Moreover, any appearance of impartiality
you might have had to investigate this matter has been shattered by your recent
media appearances defending this unlawful conduct. Your claim, and that of the
president, that this warrantless wiretapping of people in this country was
authorized by the use of force resolution following September 11, 2001 is not
grounded in any provision in this resolution suspending either the requirements
of FISA or the reach of U.S. criminal law.

For a Justice Department inquiry to be credible, an outside special counsel
with no ties to the Justice Department and no prior relation to the issue is
essential. In the absence of an outside special counsel, the nation will have no
assurance of accountability or responsibility for any criminal wrongdoing for
these actions in violation of their rights.

III. With a Constitutional Crisis Created by the Administration’s Refusal to
Follow the Law, the Public Interest Demands the Appointment of an Outside
Special Counsel.

This constitutional crisis warrants the appointment of a special counsel to
investigate these serious matters. This administration - like that of President
Nixon - has apparently adopted, in secret, a legal view of the Executive
Branch’s power that is unbounded. The president's powers to safeguard our nation
are subject to the laws enacted by the people's representatives or those laws
are nothing more than an illusion.

Neither war nor emergency provides an excuse for violating those laws, let
alone violating them intentionally and repeatedly. A secret program to spy on
the telephone conversations or e-mail of as many as 500 people a day, including
American citizens and residents in the U.S., without any court order, clearly
violates the plain language of the laws passed by Congress. This remains true
even with the broadened surveillance powers Congress approved at your request in
2001 to amend FISA with the Patriot Act.

This is not a matter that can be left solely to the legislative branch to
resolve. We believe crimes may have been committed. While Congress has a
responsibility to hold hearings to expose the scope of this unlawful activity,
congressional hearings alone are insufficient to address the criminal conduct at
issue in violating the federal felony wiretapping law.

As a general matter, the violation of criminal laws is to be investigated by
prosecutors and tried by independent federal courts. Regardless of whether
Congress chooses to vigorously exercise its oversight powers and try to repair
this breach of trust with the American people, the matters at issue are also
serious criminal matters.

No one with the authority to prosecute violations of federal criminal laws
has investigated, or been ready to prosecute if warranted, the full scope of
potential criminal liability of all those involved in this warrantless
wiretapping on American soil. There is an obvious public interest in
investigating and prosecuting violations of the federal law against wiretapping
without judicial oversight. Given the concession that these decisions to violate
the law were made at the highest levels of the Executive Branch, an outside
special counsel is clearly in the public interest. In fact, the public interest
is only heightened by the fact that the president is determined to continue this
warrantless wiretapping of people in the U.S., regardless of its lawlessness and
the public outcry against it.

Several Members of Congress as well as editorial pages across the country
have expressed shock at these warrantless wiretaps. For example, the
Washington Post noted:

The rules here are not ambiguous. . . . The Foreign Intelligence Surveillance
Act (FISA) requires that national security wiretaps be authorized by the
secretive FISA court. "A person is guilty of an offense," the law reads, "if he
intentionally . . . engages in electronic surveillance under color of law except
as authorized by statute" -- which appears, at least on its face, to be
precisely what the president has authorized.

Washington Post

(December 18, 2001). The entire point of FISA, written in
the wake of revelations of President Nixon’s claim of national security
justifications for spying on his enemies, is to channel all electronic
surveillance in the U.S. in national security investigations through the FISA
court. The Justice Department and the White House have failed to rationalize the
refusal to follow FISA’s legal requirements and are obviously not independent.
But federal law is clear: to monitor the communications of any person in the
U.S., federal agents must get court approval, subject only to the exceptions in
the statute, none of which authorizes the misconduct described or admitted. The
willful and repeated evasion of our federal laws must be fully and independently
investigated.

America must be governed by laws and not men. The law trumps good intent.
Nobody is above the law. That is the essence of the rule of law. The president
simply cannot pick and choose which laws he will or will not follow. Such an
ideology is leading our nation into the wilderness of lawlessness yet again.
Even in times of war the president is not a law unto himself-FISA’s rules and
criminal penalties have not been repealed, the Fourth Amendment has not been
suspended, and the Constitution with its bedrock principle of checks and
balances was not destroyed on September 11, 2001, and we must not allow it be
rendered moot. Nothing less than the rule of law is at stake.

We thank you for your attention to this critically important matter. We trust
you will make a proper referral of this request to a person at the Justice
Department not involved in the breaches of trust at issue in this call for the
appointment of an outside special counsel to conduct a thorough and independent
criminal investigation. We look forward to the Department’s response. Please
contact us to arrange a meeting to discuss this request.